dismissed H-1B Case: Unspecified

U.S. Citizenship 
and Immigration 
Services 
In Re : 26423250 
Motion on Administrative Appeals Office Decision 
Form 1-129, Petition for Nonimmigrant Worker (H-lB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : APR. 21, 2023 
The Petitioner seeks to temporarily employ the Beneficiary under the H-lB nonimmigrant classification 
for specialty occupations . See Immigration and Nationality Act (the Act) section 101(a)(15)(H)(i)(b), 
8 U.S.C. § 1101(a)(15)(H)(i)(b) . The H-lB program allows a U.S. employer to temporarily employ a 
qualified foreign worker in a position that requires both: (a) the theoretical and practical application of a 
body of highly specialized knowledge : and (b) the attainment of a bachelor's or higher degree in the 
specific specialty ( or its equivalent) as a minimum prerequisite for entry into the position. 
The Director of the California Service Center denied the Form 1-129, Petition for a Nonimmigrant 
Worker, concluding that the Petitioner did not establish that the proffered position qualifies as a 
specialty occupation. We dismissed the Petitioner's appeal affirming the Director's decision. The 
Petitioner has since filed four consecutive motions (consisting of two individual motions to reconsider 
and two combined motions to reopen and reconsider), and we have dismissed each one. The matter is 
now before us a fifth time in the form of a combined motion to reopen and reconsider. 
The Petitioner bears the burden of proof to demonstrate eligibility by a preponderance of the evidence . 
Section 291 of the Act; Matter ofChawathe, 25 l&N Dec. 369,375 (AAO 2010). Upon review of the 
record of proceeding we will grant the motion to reconsider our previous decision. After 
reconsideration, we will again dismiss the Petitioner's motions. 
I. LAW 
A motion to reopen is based on new facts that are supported by documentary evidence , and a motion 
to reconsider is based on an incorrect application of law or policy . The requirements of a motion to 
reopen are located at 8 C.F.R. § 103.5(a)(2), and the requirements of a motion to reconsider are located 
at 8 C.F.R. § 103.5(a)(3). 
A motion to reopen must state new facts and be supported by documentary evidence . 8 C.F.R . 
§ 103.5(a)(2). We interpret "new facts" to mean those that are relevant to the issues raised on motion 
and that have not been previously submitted in the proceeding, which includes within the original 
petition . Reasserting previously stated facts or resubmitting previously provided evidence does not 
constitute "new facts." A motion to reopen that does not satisfy the applicable requirements must be 
dismissed. 8 C.F.R. § 103.5(a)(4). 
A motion to reconsider on the other hand must: (1) state the reasons for reconsideration, (2) be 
supported by any pertinent precedent decision to establish that the decision was based on an incorrect 
application of law or policy, and (3) establish that the decision was incorrect based on the evidence in 
the record at the time of the decision. 8 C.F.R. § 103.5(a)(3). A motion to reconsider that does not 
satisfy these requirements must be dismissed. 8 C.F.R. § 103.5(a)(4). 
The review of a motion is limited to the basis for the prior adverse decision. The regulations at 8 
C.F.R. § 103.5(a)(l)(i) generally require that the decision a motion seeks to reopen or reconsider must 
have taken place within the prior 30 days. So we follow the regulations as written and limit our review 
to the prior decision made within 30 days of filing the motion. We evaluate any new facts, arguments, 
or allegations of error in the application of law or service policy in connection with our decision upon 
which the current motion was filed. We may only grant a motion that satisfies these requirements and 
demonstrates eligibility for the benefit sought. 
II. ANALYSIS 
A. Motion to Reopen 
The Petitioner has not provided us with new facts warranting reopening the proceedings here. We 
interpret "new facts" to mean those that are relevant to the issues raised on motion and that have not 
been previously submitted in the proceeding. Reasserting previously stated facts or resubmitting 
previously provided evidence does not constitute submission of "new facts." The Petitioner's brief 
essentially encourages us to look beyond our prior decision and expand our examination to encompass 
our dismissals of the appeal and subsequent motions to find the new facts it says support a motion to 
reopen so that the original denial of the petition can be reversed. We do not have the authority to do 
so. The regulations at 8 C.F.R. § 103.5(a)(l)(i) generally require that the decision a motion seeks to 
reopen or reconsider must have taken place within the prior 30 days and we follow the regulations as 
written. The denial of the petition, the dismissal of the appeal and three out of the previous four motion 
dismissals occurred well outside of the 30-day window provided for in the regulation at 8 C.F.R. 
§ 103.5(a)(l)(i). 
All parties to a matter deserve an opportunity to be heard. But once proceedings provide that fair 
opportunity, a strong interest exists to bring the matter to a close. INS v. Abudu, 485 U.S. 94, 107 
(1988). So a party seeking to reopen the proceedings bears a "heavy burden" of proof Id. at 110. 
The Petitioner does not provide any new facts that relate to our July 2022 decision dismissing the 
Petitioner's third motion. In this fifth in the Petitioner's series of motions, it submits a letter brief 
encouraging us to reopen the proceedings by reviewing its "genuine reasons along with additional 
facts and information" submitted in its prior proceedings. But "additional facts" that are repeated 
and were provided previously are not "new facts" by definition and we decline to consider them. Our 
authority is delegated by the Secretary of the Department of Homeland Security (DHS) pursuant to 
the authority vested in the Secretary through the Homeland Security Act of 2002, Pub. L. 107-296. 
See DHS Delegation Number 0150.1 (effective Mar. 1, 2003); see also 8 C.F.R. § 2.1 (2003). The 
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fact here is that the Petitioner was required to file any motion to reconsider or reopen our February 20, 
2020 dismissal of the Petitioner's appeal within 33 days. The Petitioner did not file their motion until 
October 26, 2020. This was 249 days later. So the Petitioner's motion was correctly dismissed as 
untimely. We addressed the Petitioner's request for us to extend U.S. Citizenship and Immigration 
Services' (USCIS) COVID-19 flexibility announced on March 27, 2020 in our previous decisions in 
this matter. The COVID-19 flexibilities USCIS announced on March 27, 2020 only applied to requests 
for evidence (RFE) and notices of intent to deny (NOID) issued between March 1, 2020 and May 1, 
2020. The Petitioner did not receive an RFE or NOID on February 20, 2020; they received a dismissal 
of their appeal and were required to file a Form I-290B. The COVID-19 flexibilities USCIS 
announced on March 27, 2020 made no provision for flexibility in regulatory response timeframes for 
filing Form I-290B. 1 Although some COVID-19 flexibilities did commence during the period the 
Petitioner could have filed their motion, those flexibilities did not apply to the Petitioner. And the 
Petitioner has not provided any statutory or regulatory authority or USCIS policy that would enable 
us to provide them with the relief they seek. So there is no factual or legal basis for us to consider 
reopening the matter before us. 
B. Motion to Reconsider 
A motion to reconsider must state the reasons for reconsideration and that the decision was based on 
an incorrect application oflaw or USCIS policy. 8 C.F.R. § 103.5(a)(3). The Board oflmmigration 
Appeals generally requires that a motion to reconsider assert an error was made at the time of the 
previous decision. The very nature of a motion to reconsider is the claim that the original decision 
was defective in some regard. See Matter of O-S-G-, 24 I&N Dec. 56, 57 (BIA 2006). 
A motion to reconsider must: (1) state the reasons for reconsideration; (2) be supported by any 
pertinent precedent decision to establish that the decision was based on an incorrect application of law 
or policy; and (3) establish that the decision was incorrect based on the evidence in the record at the 
time of the decision. 
The Petitioner's motion to reconsider is not supported by any precedent decision to establish that our 
previous decision was based on an incorrect application of law or policy. It also does not establish 
that our decision was incorrect based on the evidence in the record at the time of decision. 
Consequently, it does not meet the requirements for a motion to reconsider and does not overcome the 
reasons for our previous decision of July 2022. 
Disagreeing with our conclusions without showing that we erred as a matter of law is not a ground to 
reconsider our decision. See O-S-G-, 24 I&N Dec. at 58. The Petitioner has not demonstrated how we 
erred in our previous decision on the Petitioner's prior motion in July 2022. So the Petitioner has not 
shown proper cause for reconsidering our decision on its previous motion. 
1 COVID-19 flexibility on regulatory timeframes to submit a Form I-290B was not available until May 1, 2020 and even 
then only provided a 60-day flexibility. The Petitioner filed their combined motion to reopen and reconsider the dismissal 
of their appeal 249 days after our decision. 
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III. CONCLUSION 
The Petitioner should note that the filing of a motion to reopen or reconsider does not provide any 
interim benefits such as staying the execution of any decision or extending a previously set departure 
date. 8 C.F.R. § 103.5(a)(l)(iv). The Petitioner has not demonstrated that we should either reopen 
the proceedings or reconsider our decision. 
ORDER: The motion to reopen is dismissed. 
FURTHER ORDER: The motion to reconsider is dismissed. 
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